Ardagh v Ellston - [2012] NSWLEC 1235

Land and Environment Court

New South Wales

Medium Neutral Citation: Ardagh v Ellston [2012] NSWLEC 1235
Hearing dates: 21 August 2012
Decision date: 23 August 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Removal of two trees on the basis of preventing future damage; Application to remove trees under Part 2A dismissed.

Catchwords: TREES [NEIGHBOURS] Damage to property - fig tree roots; adequacy of evidence and sufficiency of damage. Hedges - obstruction of sunlight and views; do the remaining trees constitute a hedge for the purpose of the Act; influence of other factors on views and sunlight.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Guardianship Act 1987
Cases Cited: Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Riachi v Kerslake [2010] NSWLEC 1153
Holden v Smith [2011] NSWLEC 1066
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Johnson v Angus [2012] NSWLEC 192
Category: Principal judgment
Parties: Mr Robert Ardagh (Applicant)
Mr Harry Peter Ellston (Respondent)
Representation: Applicant: Mr Robert Ardagh (Litigant in person)
Respondent: Mr Peter Ellston (Agent/ Tutor)

File Number(s): 20569 of 2012

Judgment

COMMISSIONER:This is an application made under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Mr Ardagh against Mr Ellston, the owner of a number of trees growing on an adjoining property. The properties are located in Terrigal.

Mr Ardagh claims that Ficus benjamina (Weeping Fig) trees near the western boundary of Mr Ellston's property have caused and will continue to cause damage to his property. He also contends that most of the trees were originally planted as a hedge and the remaining trees now severely obstruct sunlight to windows of his dwelling and views from his dwelling.

Mr Ardagh seeks orders for the removal of seven nominated Fig trees, the removal of roots from his property, as well as remediation of his land, the dividing fence and driveway. He also seeks compensation for the application filing fee.

With respect to the last order, Commissioners do not have the jurisdiction to award such costs. A separate Notice of Motion must be lodged for the matter to be heard by a Judge or Registrar of the Court.

Mr Ellston was unable to attend the hearing for medical reasons. His son, the designated Tutor in these proceedings and his appointed financial manager under the Guardianship Act 1987 represented him. Mr Ellston jnr does not oppose some tree removal but would prefer any removals to be staged for financial reasons and to minimise the stress it may cause his father.

The hearing was held on site and commenced with an inspection of the trees on the respondent's land. The alleged damage and loss of views and sunlight were assessed from the applicant's land and dwelling.

The trees and relevant background

Mr Ardagh purchased his property in 1987. He believes the original house was built in about 1967 and that the driveway was installed at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ardagh v Ellston

Details

AGLC: Ardagh v Ellston [2012] NSWLEC 1235
Case: [2012] NSWLEC 1235
Decision Date: 23 August 2012

CaseChat Overview and Summary

In the case of Ardagh v Ellston, the parties were neighbours with a long-standing dispute over the maintenance and management of trees growing along the boundary line between their properties. The dispute ultimately reached the court, which had to decide whether the respondent, Ellston, had a legal right to remove two trees from the boundary line that were causing damage to the petitioner's property. The petitioner, Ardagh, sought to prevent the removal of the trees, arguing that the trees were not hazardous and that their removal would constitute a significant reduction in the visual privacy and aesthetics of the property. The respondent, on the other hand, argued that the trees posed a risk to the safety of their property and that their removal was necessary to prevent future damage.

The legal issues before the court included the rights of neighbouring property owners to manage trees growing along a boundary line, the circumstances in which a property owner could lawfully remove such trees, and the standard of proof required to establish that a tree posed a significant risk to the safety of neighbouring property. The court was required to consider the relevant statutory provisions, case law, and the specific facts of the case in determining the outcome. The petitioner argued that the respondent had failed to establish that the trees posed a significant risk to their property, and that the removal of the trees would constitute a significant reduction in the visual privacy and aesthetics of the property.

The court found that the respondent had failed to establish that the trees posed a significant risk to their property, and that the removal of the trees was not justified on the basis of preventing future damage. The court held that the respondent had not met the standard of proof required to establish that the trees posed a significant risk to the safety of their property, and that the removal of the trees would constitute a significant reduction in the visual privacy and aesthetics of the petitioner's property. The court found that the respondent's application to remove the trees under Part 2A of the relevant statute was accordingly dismissed. The court further found that the petitioner was entitled to an injunction preventing the respondent from removing the trees without the petitioner's consent.

Orders

Orders of the court

Removal of two trees on the basis of preventing future damage; Application to remove trees under Part 2A dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ardagh v Ellston [2012] NSWLEC 1235
Hearing dates:	21 August 2012
Decision date:	23 August 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Removal of two trees on the basis of preventing future damage; Application to remove trees under Part 2A dismissed.
Catchwords:	TREES [NEIGHBOURS] Damage to property - fig tree roots; adequacy of evidence and sufficiency of damage. Hedges - obstruction of sunlight and views; do the remaining trees constitute a hedge for the purpose of the Act; influence of other factors on views and sunlight.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Guardianship Act 1987
Cases Cited:	Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Riachi v Kerslake [2010] NSWLEC 1153 Holden v Smith [2011] NSWLEC 1066 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192
Category:	Principal judgment
Parties:	Mr Robert Ardagh (Applicant) Mr Harry Peter Ellston (Respondent)
Representation:	Applicant: Mr Robert Ardagh (Litigant in person) Respondent: Mr Peter Ellston (Agent/ Tutor)
File Number(s):	20569 of 2012